Citation Nr: 1542891
Decision Date: 10/06/15 Archive Date: 10/13/15
DOCKET NO. 13-13 418 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho
THE ISSUES
1. Entitlement to service connection for a right knee disability.
2. Entitlement to service connection for mild degenerative changes of the AC joint and type II/III acromion of the right shoulder.
3. Entitlement to service connection for type II/III acromion of the left shoulder.
4. Entitlement to service connection for degenerative joint disease of the hips.
5. Entitlement to service connection for degenerative disc disease of the lumbar spine.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Sarah Plotnick, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1992 to April 1997 and from November 2003 to April 2005.
These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.
This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015).
The Veteran claims that he has degenerative disc disease, degenerative joint disease of the hips, a right knee disability, and degenerative joint disease of the shoulders as a result of his military service. In a February 2011 statement, the Veteran claimed that his right knee disorder, bilateral shoulder disorder, bilateral hip disorder, and back disorder occurred during active duty in the Navy between June 1992 to April 1997, but were aggravated while on Title 10 deployment from November 2003 to April 2005. Specifically, he contends that his current hip and shoulder disability were caused by regular lifting and carrying of heavy boxes during active duty between 1993 and 1997. He stated in his January 2011 claim that "[t]he constant stress of the weight and awkwardness of the boxes contributed to [misaligned] hips and right and left shoulders being injured...." In his January 2012 notice of disagreement, the Veteran stated that his bilateral hip, bilateral shoulder, and back disorders were caused by carrying 100 to 120 pounds of battle gear daily during active duty service between November 2003 and November 2005. He also stated that he believe such stress caused his back problems. The Veteran also reported that his claimed current right knee disability is the result of an injury during basic training.
Right Knee Disability
On a June 1991 enlistment report of medical examination, it was noted that the Veteran was diagnosed with right knee tendonitis in August 1990, which had resolved. Service treatment records dated in September 1993 note that the Veteran fell and hit his right knee on a rock. He complained of throbbing pain. His knee was swollen and he had limited range of motion with pain. X-rays revealed no evidence of fracture.
In October 1996, the Veteran reported that he had knee pain for 25 days and after injuring his knee while skydiving. In December 1996, the Veteran reported to sick call with a right knee injury. The Veteran reported that he was "doing leg presses [with] 200 [pounds] when the machine got stuck....[H]e had to jiggle the machine to get it back up and in doing so he felt is knee pop." The Veteran reported that the pain increased at work. The assessment was a right knee strain.
On a March 1997 report of medical history, the physician's notes indicate that the Veteran had a knee strain in August 1993, which healed without significant functional deficit.
On a report of medical assessment, dated in March 2005, the Veteran reported that he experienced shoulder pain during active duty. He also reported that he had knee pain from a prior injury.
In July 2011, the Veteran underwent a VA joints examination. The examiner noted that the onset of the Veteran's right knee pain was in 1993. Veteran's knee was placed in a knee immobilizer and he used crutches. Recovery took approximately six to seven weeks, and he had no further knee complaints until 2003 when he began having knee pain while he served in a tank unit. The Veteran reported that jumping and bending to get on and off tanks caused pain. He now notices catching, popping, and clicking in his right knee. The Veteran had pain and locking episodes one to two times each year. The examiner noted that the Veteran had significant hip pain with range of motion of his knees, but no pain in the knees. Imaging studies revealed a normal right knee. The examiner stated:
The veteran had a knee contusion while in the service and had an undisclosed knee injury prior to service. [H]is knee contusion did not aggravate any pre-service condition, medical records do not show evidence of any chronic disability or any aggravation of injury. The veteran[']s knee conditions that he received in service did not create a chronic disability, his current xrays of both knees are normal, negative for any abnormalities.
In his January 2012 notice of disagreement, the Veteran stated that he has experienced right knee pain since his original injury in 1993. He also stated that he was, in fact, experiencing pain in his knee at the time of his July 2011 VA examination.
At his June 2015 Board hearing, the Veteran reported that he had consistent knee pain and was prescribed pain medication.
The Board notes that the July 2011 examiner found that the Veteran did have a current right knee disability. However, the Board notes that it has been more than four years since the Veteran's examination, and he has reported that he has consistent knee pain. In light of such statements, the Board finds that a remand for an updated VA examination is needed to determine the nature and etiology of the Veteran's claimed right knee disability.
The Board further notes that the July 2011 examination report suggests that the Veteran had a pre-existing knee disability. The Board acknowledges that the Veteran's June 1991 enlistment report of medical examination notes that he was diagnosed with right knee tendonitis in August 1990. However, the report further indicates that such condition had resolved. Therefore, the presumption of soundness applies. 38 U.S.C.A. § 1111 (West 2014). That presumption can only be rebutted by clear and unmistakable evidence that the disability both pre-existed and was not aggravated in active service. Id. To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006); see also Horn v. Shinseki, 25 Vet. App. 231 (2012).
If the presumption is not rebutted the claim is treated as an ordinary claim for service connection. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).
An examination is needed to obtain an opinion as to whether any current right knee disability related to the reported knee injury during service, and whether any such disability clearly and unmistakably pre-existed service and was not aggravated in service.
Bilateral Shoulder Disability
On a June 1991 enlistment report of medical examination, it was noted that the Veteran was diagnosed with right shoulder impingement syndrome in April 1991. However, his orthopedic examination was normal.
July 2008 VA treatment records note that the Veteran carried full equipment on his back in Iraq and both shoulders hurt upon return from deployment.
In July 2011, the Veteran underwent a VA joints examination. The examiner stated that the onset of the Veteran's bilateral shoulder pain was in November 2004. The examiner noted that the Veteran gradually started having problems with his shoulders while he was in Iraq after being involved in a motor vehicle accident. He was not treated for any injuries and continued with his patrol duties. The Veteran also reported that he was a gunner and wore heavy vests with additional ammunition that caused increased wear and tear to both shoulders. The Veteran had tenderness, pain at rest, and guarding of movement in both shoulders, and he had point tenderness to the AC joint of the right shoulder. He had significant bilateral shoulder pain with range of motion evaluation. The examiner noted that the Veteran had mild degenerative changes of the right AC joint. The examiner stated that the Veteran's current bilateral shoulder disability "is not caused by or a result of [pre-existing] shoulder impingement and type II-III acromium which predisposes the veteran to impingement syndromes." The rationale was that the Veteran's current shoulder condition was "a natural progression of a pre-existing condition, [and] his current x-rays show both acromiums to be type II and III, which generally leads to shoulder impingement." The examiner further noted that the veteran did not complain of shoulder pain at separation from active duty and only complained at separation from the National Guard. There was no other evidence of shoulder problems in service. The examiner then concluded, "I do not feel that there is evidence that supports aggravation of the pre-existing condition."
On his April 2013 VA Form 9, the Veteran claimed that his July 2011 VA examination was inadequate. The Veteran stated that he did not have a shoulder condition prior to joining the military. He also claimed that the examiner did not review his service treatment records.
At his June 2015 Board hearing, the Veteran reported that his shoulder pain began in late 2004 while he was serving in Iraq. He stated that he was in pain when he returned from Iraq, but did not get treatment for a couple of years because he was taking pain medication for his back, which lessened his shoulder pain.
The Board finds that a new VA examination is warranted regarding the Veteran's claimed bilateral shoulder disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). The Board finds that the July 2011 examination report is inadequate because the VA examiner treated the Veteran's bilateral shoulder disability as a pre-existing condition. However, as noted above, with respect to the Veteran's first period of service, a bilateral shoulder disability was not noted. The Board acknowledges that the June 1991 enlistment report of medical examination notes that the Veteran was diagnosed with right shoulder impingement syndrome in April 1991. However, his orthopedic examination was normal. As such, the presumption of soundness applies to the Veteran's first period of active duty, from June 1992 to April 1997.
As to the second period of active duty, from November 2003 to April 2005, the Board notes that VA has been unable to obtain the Veteran's relevant service treatment records. In September 2011, VA issued a Formal Finding on the Unavailability of Service Treatment Records for the Veteran's second period of active duty service from 2003 to 2005, with the exception of a medical assessment dated in March 2005. A handwritten note indicates that partial records were found. However, no entrance examination was recovered. Thus, there is no way to determine if any bilateral shoulder disability was "noted" on his entrance examination. Therefore, as there is no evidence to the contrary, the Board presumes that an entrance examination was provided prior to his second period of active duty service, and that no bilateral shoulder disability was noted. See Quirin v. Shinseki, 22 Vet. App. 390, n5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrance examination has been lost of destroyed while in VA custody)).
The Board finds that an examination is needed to obtain an opinion as to whether the Veteran's current bilateral shoulder disability is related service, and whether any such disability clearly and unmistakably pre-existed service and was not aggravated in service.
Bilateral Hip Disability
An October 2010 private treatment record from Dr. J.I. notes that the Veteran reported a popping sensation with flexion of the hip and that he had chronically had some degree of pain in the hips for years. He stated that he was told he had arthritis in his hips.
October 2010 private treatment records from Dr. C.J. note that the Veteran experienced a "clunking sensation" in his left hip for the last six months. X-rays of the left hip showed no evidence of avascular necrosis. There were minimal, if any, degenerative changes. There was a possible slight osteophyte formation about the margins of the formal head on the right hip. The impression was a possible labral tear in the left hip.
January 2011 private treatment records by Dr. P.L. note that the Veteran had a two year history of left hip pain. The impression was left hip pain secondary to a labral tear. The Veteran underwent left hip arthroscopy and debridement of a superior labral tear of the left hip.
At his June 2015 Board hearing, Veteran reported that he started experiencing a dull aching pain in his hips during his deployment to Iraq.
The Veteran has not been provided with a VA examination for his claim for a bilateral hip disability. Based on the evidence currently of record, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed bilateral hip disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Degenerative Disc Disease
Private treatment records dated in June 2007 note that the Veteran reported the onset of his back pain was in December 2006. An MRI revealed disc herniation at T7-T8 and spurs at T8 and T9. Imaging studies dated in April 2007 note mild arthroses of the anterior margins of T8 through T10, minimal in degree. Intervertebral joint spaces and bony alignment were otherwise unremarkable. Imaging studies dated in December 2007 note minimal loss of disc space height at L4-L5 and prominent anterior osteophytes at L4 and L5. There were degenerative changes of the cervical spine.
December 2007 VA treatment records note that the Veteran had a history of spine degenerative disc disease and shoulder pain "believed to be service connected."
January 2008 imaging studies revealed mild disc space narrowing and loss of disc hydration signal at L4-L5. There was a small high signal annulus tear involving the far left lateral aspect of the L4-L5 disc. There was no focal disc protrusion or significant central or lateral recess stenosis.
August 2010 imaging studies revealed normal alignment of the thoracic spine. There was mild degenerative disc disease at T7-T8 and moderate degenerative disc disease at T8-T9. There was no significant disc bulge or herniation. There was mild disc desiccation and degeneration at L4-L5, with a minor broad-based posterior disc bulge. Mild bilateral facet arthropathy was noted.
An October 2010 private treatment record from Dr. J.I. notes that the Veteran had low back and thoracic spine pain "chronically after years of military service with no particular trauma but much lifting under extreme circumstances."
May 2011 VA treatment records note that the Veteran had pain in his thoracic and lumbar spine since December 2006.
August 2011 VA treatment records note that the Veteran had chronic lower back pain due to facet arthritis and some degenerative disc disease. Thoracic back pain was possibly due to degenerative disc disease and facet arthropathy.
At his June 2015 Board hearing, The Veteran reported that he first started experiencing back pain after he returned from his deployment. He stated that he believed his back pain was due to carrying heavy equipment during his deployment to Iraq.
The Veteran has not been provided with a VA examination for his claim for degenerative disc disease. Based on the evidence currently of record, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his degenerative disc disease. 38 C.F.R. § 3.159(c)(4); McLendon, supra.
On remand, to ensure that all due process met and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.
As for VA records, the claims file currently includes outpatient treatment records from the VA Medical Centers (VAMC) in Walla Walla and Puget Sound, Washington, dated to August 2011; however, more recent records may exist. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the AOJ must obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated since August 2011. The AOJ must follow the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities.
The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2015).
Accordingly, the case is REMANDED for the following action:
1. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran since August 2011. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file.
2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record, to include private medical records.
3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.
4. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination so as to determine the current nature and etiology of his claimed right knee disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.
(A) The examiner should identify all current right knee disabilities.
(B) The examiner should opine as to whether any current right knee disability clearly and unmistakably preexisted the period of service from June 1992 to April 1997
(C) If the examiner finds that the Veteran's right knee disability clearly and unmistakably preexisted service, the examiner should opine as to whether such disability was clearly and unmistakably not aggravated (clearly and unmistakably underwent no permanent increase in disability beyond natural progression).
(D) If the examiner finds that the Veteran's right knee disability did not clearly and unmistakably preexist service and/or was not clearly and unmistakably aggravated in service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that such disability had its onset during the period of service from June 1992 to April 1997, or is otherwise the result of a disease or injury during that period of service. The examiner should specifically state whether any current right knee disability is due to the Veteran's September 1993 injury reported in his STRs.
A complete rationale should be given for all opinions and conclusions rendered.
5. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination so as to determine the current nature and etiology of his bilateral shoulder disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.
(A) The examiner should identify all current bilateral shoulder disabilities.
(B) The examiner should opine as to whether any current bilateral shoulder disability clearly and unmistakably preexisted the period of service from June 1992 to April 1997 or from November 2003 to April 2005.
(C) If the examiner finds that the bilateral shoulder disability clearly and unmistakably preexisted service, the examiner should opine as to whether such disability was clearly and unmistakably not aggravated (clearly and unmistakably underwent no permanent increase in disability beyond natural progression).
(D) If the examiner finds that the Veteran's bilateral shoulder disability did not clearly and unmistakably preexist service and/or was not clearly and unmistakably aggravated in service, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that such disability had its onset during the Veteran's periods of active duty service (June 1992 to April 1997 or November 2003 to April 2005), or is otherwise the result of a disease or injury during that period of service.
The examiner should specifically consider the Veteran's statements that his current bilateral shoulder disability is the result of carrying heavy objects during service.
A complete rationale should be given for all opinions and conclusions rendered.
6. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination so as to determine the current nature and etiology of his claimed bilateral hip disorder and degenerative disc disease of the lumbar spine. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.
(A) The examiner should identify all current bilateral hip and back disabilities
(B) For each hip and back disorder found to be present, the examiner should offer an opinion as to whether such is at least as likely as not related to the Veteran's military service.
In offering any opinion, the examiner should consider the entire record, to include the Veteran's statements that such claimed disorders are the result of carrying heavy objects during service.
Any opinions expressed must be accompanied by a complete rationale.
7. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).